Democracy, Rule-of-law, and Legal Ethics Education in Context: Directing Lawyers to Support Democratization in Myanmar

• Publication year: 2019
• Citation: Vol. 47 No. 2

DEMOCRACY, RULE-OF-LAW, AND LEGAL ETHICS EDUCATION IN CONTEXT: DIRECTING LAWYERS TO SUPPORT DEMOCRATIZATION IN MYANMAR

Jonathan Liljeblad^*

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TABLE OF CONTENTS

I. Introduction...................................................................................452

A. The Pedagogy of Legal Ethics Education...................454
B. Legal Ethics and Legal Education in Myanmar.........455
C. Myanmar Legal Ethics Compared to Regional and International Trends..................................................457

1. Malaysia..............................................................458
2. Singapore.............................................................459
3. The Philippines....................................................459
4. Comparison..........................................................460

II. CONNECTING LEGAL ETHICS TO DEMOCRATIZATION........................464

III. DEMOCRATIZATION IN MYANMAR.....................................................468

A. Structural Issues.........................................................468
B. Cultural Issues............................................................470

IV. THE IMPLICATIONS OF DEMOCRATIZATION FOR LEGAL ETHICS EDUCATION IN MYANMAR............................................................474

V. FURTHER DIRECTIONS FOR RESEARCH...............................................475

VI. Conclusion......................................................................................476

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I. Introduction

Legal education in Myanmar's higher education system is undergoing reform as part of the national government's New Education Strategic Plan 20162021 (NESP).¹ In the NESP, higher education is viewed as inherent to the country's development in terms of producing the human capital necessary for economic growth and engagement with the international community.² The NESP articulates strategic goals for Myanmar's universities in terms of improved governance, more equitable access, and higher quality that rises to the status of "a world-class higher education system" appropriate for a "knowledge-based economy."³ As part of these goals, the NESP presents a comprehensive agenda that raises government spending, increases faculty numbers, implements capacity-building programs to improve faculty teaching and research, builds and modernizes infrastructure, encourages relationships with foreign partners, provides greater university autonomy and academic freedom, promotes access to a global internet, applies performance evaluation and quality assurance mechanisms, and expands support for students from disadvantaged backgrounds.⁴

In setting goals, the NESP looks to the international community. The NESP places itself within a larger twenty-year Ministry of Education (MoE) plan that seeks to have Myanmar's universities meet both Association of Southeast Asian Nations (ASEAN) and international standards.⁵ In addition, the NESP uses such standards not just as benchmarks but also as instructional references, with the text of the NESP calling for Myanmar to develop "world-class national universities" that follow the lessons of other ASEAN countries.⁶ In essence, the NESP seeks to draw upon other countries for guidance in developing Myanmar's higher education system.

The ambitions for national reform provide an opportunity to alter legal ethics education in Myanmar to follow international standards. Myanmar's legal education has suffered in the course of the country's post-independence history, with successive military regimes weakening both universities and the legal system over multiple decades to leave the country's law schools bereft of resources and skills in research and teaching.⁷ The NESP's goal for "world-

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class" higher education directs Myanmar's law schools, and by extension their instruction in topics like legal ethics, to match the performance of law schools in other countries.⁸ Concomitant with such aspirations is a rising global demand for legal ethics to help lawyers understand the issues of justice and advocacy as countries become increasingly engaged with an international community.⁹ Hence, to the extent that they seek to satisfy the purposes of higher education reform, Myanmar's law schools have a reason to reconsider the delivery of legal ethics education in relation to foreign standards.

The following analysis explores directions for reform of legal ethics education in Myanmar's law schools and argues that pedagogical changes in legal ethics education towards existing ASEAN and international standards is insufficient. Specifically, the analysis asserts a need to direct the pedagogy of legal ethics education in support of the country's democratization. The discussion begins with an introduction to legal ethics pedagogy, followed by a brief background regarding Myanmar's law schools and legal ethics instruction. After this, the discussion reviews legal ethics education in other countries to provide some reference for Myanmar against law schools in both the ASEAN region and the United States. The analysis then proceeds to investigate the context of Myanmar's democratization, noting the issues posed by the country's transition and the resulting implications for legal ethics education. This Article finds that the context of Myanmar's democratization calls for an expansion in legal ethics pedagogy that nurtures law graduates to be better able to serve the country's transition. This Article finishes by noting further directions for research and conclusions for legal ethics education in other countries with contexts similar to Myanmar.

The following analysis draws on field notes collected during 2016-2017 in the course of field research on rule-of-law and university reforms in Myanmar. During this time period, the author taught at law schools in Myanmar and participated in the work of several international non-governmental organizations (NGOs) engaged in capacity-building efforts in Myanmar's legal education system. The author was self-funded and worked pro bono. Due to the sensitivities associated with the country's ongoing political transition, the names of the law schools, government offices, and non-governmental organizations are withheld to protect the identities and activities of vulnerable parties. Moreover, interviews are avoided in favor of observations, government documents, and existing scholarly literature. Field observations are supplemented by primary source materials in the form of government documents made available to the public and which were acquired either via the internet or, when not available for download, via in-person contact with Myanmar

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ministries. The analysis also makes use of secondary sources in the form of published scholarly literature relevant to the discussion of Myanmar, legal ethics, rule-of-law, and democratization.

In keeping with the principles of legal anthropology regarding research methods, readers are advised of the subjectivity bias endemic to participant-observer methods wherein observations are interpreted and understood through the researcher's worldview.¹⁰ Mindful of this, it should be noted that the author is an academic trained in both law and social sciences by a U.S. university and so operates with the perspective of an American legal and social science scholar. The author is mindful of a potential bias induced by such a perspective for American conceptions of law and politics and the resulting risks of reductionism in extending American approaches to other contexts. The author endeavors to balance the potential bias with a bicultural background as someone born in Myanmar but raised in Sweden and the United States. Through a bicultural lens, the author exercises sensitivity to the differences in worldviews and associated socio-cultural, economic, political, and historical contexts between Myanmar and the West.

A. The Pedagogy of Legal Ethics Education

There are a range of pedagogical approaches regarding legal ethics education, with differences involving questions of content and manner of delivery regarding the topic within a law school curriculum.¹¹ Gonzalo Villalta Puig, Head of the School of Law and Politics at the University of Hull, organizes the various approaches using a typology that varies across two dimensions: (1) the constitution of legal ethics education in terms of content and (2) the structure of legal ethics education in terms of its placement in a degree program.¹² With respect to content of ethics taught in a legal education curriculum, Puig posits a difference between approaches that see "ethics-as-law" versus those that see "ethics-as-judgement."¹³ The ethics-as-law approach holds to a canon of sources—statutes, case law, or professional organizations—that

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present an identifiable corpus of specific rules for legal practitioners to follow; in contrast, the ethics-as-judgement approach seeks to develop within individual legal professionals "ethical reasoning that connects . . . rules about ethics, the skills necessary for everyday legal practice, theories, values, and policy and personal beliefs" to deal with the complexities that frequently arise in legal practice.¹⁴

With respect to structure, Puig distinguishes between "discrete" and "pervasive" modes of legal ethics education.¹⁵ The former makes legal ethics a discrete subject, with dedicated courses separate from others within a degree program.¹⁶ The latter integrates legal ethics throughout a curriculum, with teachers calling upon students to recognize legal ethics issues in the course of studying different subjects.¹⁷ Puig sees the pervasive perspective as combining discrete legal ethics courses with an ongoing opportunism that highlights legal ethics questions in the body of other classes.¹⁸

Puig's typology provides a pedagogical framework that clarifies a range of options in the delivery of a legal ethics education. Based on the two dimensions in his typology, law schools have...